Ross v. First Presbyterian Church of Stockton
| Citation | 197 S.W. 561,272 Mo. 96 |
| Parties | WALTER ROSS, Appellant, v. FIRST PRESBYTERIAN CHURCH OF STOCKTON, OMER WASSON and WALLACE WASSON |
| Decision Date | 28 August 1917 |
| Court | Missouri Supreme Court |
Appeal from Cedar Circuit Court. -- Hon. C. H. Skinker, Judge.
Affirmed.
Faulke & Brown and John B. Cole for appellant.
(1) The will of Hugh Ross is an instrument inoperative and void as to passing any interest in the real estate in controversy to the defendant claimant, the First Presbyterian Church of Stockton. (a) The will of Hugh F. Ross bears date February 10, 1860, and was admitted to probate March 31, 1860. The First Presbyterian Church of Stockton was not created or in existence, until November 20, 1903, that is, it was not in legal existence until about forty-four years after the will was executed. Douthitt v. Stinson, 63 Mo. 268. (b) The defendant church could not acquire title from a parent incorporated body because at the date Hugh F. Ross died the Missouri Constitution of 1820 was in force and thereby it was provided "that no religious corporation can ever be established in this State." Proctor v. Board of Trustees, 225 Mo. 52; Constitution 1820, art. 13, sec. 5. (c) Because the grant was not to any person, or persons association or committee then existing or in being definitely pointed out or designated. Board of Trustees v. May, 201 Mo. 360; Wells v. Fuchs, 226 Mo. 106. (2) The will of Hugh Ross either vested in the "Old School" Presbyterian Church at Stockton, Missouri, the whole remainder in his 560 acres of land in controversy, or his will became wholly invalid and inoperative as to such remainder. Courts cannot make wills for deceased persons. Lockridge v. Mace, 109 Mo. 162; Sevier v Woodson, 205 Mo. 202; Board of Trustees v. May, 201 Mo. 360, 264 Mo. 533; Hadley v. Forsee, 203 Mo 418. (3) The plaintiff, not having been provided for in his father's will, although born after his father's death, was entitled to inherit notwithstanding the will. 1 R S. 1855, p. 660, sec. 2; G. S. 1865, chap. 129, sec. 2; R. S. 1879, sec. 2162; R. S. 1889, chap. 51, sec. 4466; R. S. 1909, art. 5, sec. 333. Defendants having imputed to the mother of the plaintiff the character of a woman bad for virtue and chastity, plaintiff offered to prove that his mother's general reputation for virtue and chastity, from the time of Hugh Ross's death until she died was good, by witnesses present in court, which offer the court excluded. "The law presumes that every woman is chaste, until the contrary appears." State v. Kelley, 191 Mo. 691. Where immoral or illegal acts are sought to be imputed in any civil or criminal proceeding to a party and the conduct of such party in the respect impugned or sought to be impugned becomes a matter for judicial consideration, then, and in every such case, the general reputation of the parties so assailed is competent toward rebutting the commission of the imputed offense. Greenleaf on Evidence (14 Ed.), p. 82, sec. 54; Gutzwiller v. Lackman, 23 Mo. 168; Rogers v. Troost, 51 Mo. 470. (4) The trial court overlooked, or ignored the pleadings and the evidence as to the actual, open, notorious, continuous, exclusive and adverse possession of the plaintiff in the claim of ownership for more than 30 years. R. S. 1909, sec. 1879; R. S. 1909, sec. 1882.
S. E. Osborne, W. R. Hawkins and Mann, Todd & Mann for respondent First Presbyterian Church of Stockton, Missouri.
(1) The will is not inoperative and void, and the bequest of the proceeds of the sale of the land to be devoted to the building of a house of worship at Stockton, Missouri, for the benefit of the Old School Presbyterian Church is valid, because: (a) It is a devise to a public charity. 3 Pomeroy's Equity (3 Ed.), sec. 1021; Schmidt v. Hess, 60 Mo. 591; Hadley v. Forsee, 203 Mo. 418; Russell v. Allen, 107 U.S. 163; 6 Cyc. 913; Attorney-General v. Briggs, 42 N.E. 118; Attorney-General v. Trinity Church, 91 Mass. 422. (b) A charitable gift will not be permitted by a court of equity to fail because of the non-incorporation of the society to whom or for whose benefit the conveyance was made, or for the lack of trustee. The power of the courts of equity to administer such trusts belongs to its general jurisdiction as a court of chancery, and is not derived from the statutes of Elizabeth. The fact that there was no organized or incorporated church at Stockton in 1860 when the will was made does not invalidate the bequest. Buckley v. Monk, 187 S.W. 31; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Schmidt v. Hess, 60 Mo. 391; Chambers v. St. Louis, 29 Mo. 453; Russell v. Allen, 107 U.S. 163; 2 Perry on Trusts (3 Ed.), sec. 687-700; 6 Cyc. 914. (c) Public uncertainty as to the individual to whom the benefit reaches does not defeat the gift, but on the contrary is one of the features that distinguishes a public from a private charity. And the courts will enforce it if the donee sufficiently shows his intention to create a charity and indicates its general nature and purpose, and described in general terms the classes of the beneficiary. 3 Pomeroy's Equity (3 Ed.), sec. 1025; 6 Cyc. 936; 40 Cyc. 1469-1471. (d) Gifts to charitable uses have always received favorable consideration by the courts. Chambers v. St. Louis, 29 Mo. 543; Academy of the Visitation v. Clemens, 50 Mo. 167; Schmidt v. Hess, 60 Mo. 591; Howe v. Wilson, 91 Mo. 45; Missouri Historical Society v. Academy of Science, 94 Mo. 459; Powell v. Hatch, 100 Mo. 592; Barclay v. Donnell, 122 Mo. 561; Sappington v. Trustees, 123 Mo. 32; Lackland v. Walker, 151 Mo. 210; Hadley v. Forsee, 203 Mo. 418. (e) A bequest for charitable uses is valid even though there be no trustee appointed to carry it into effect. The court of equity will either appoint a trustee or execute the trust itself. 1 Perry on Trusts, sec. 249; Mormon Church v. United States, 157 U.S. 57; 3 Pomeroy's Equity (3 Ed.), sec. 1026; In re John's Estate, 36 L.R.A. 242. (f) The contention of appellant that the defendant church could not acquire title from a parent incorporated body because at the date of the death of Hugh F. Ross, the Constitution of 1820 was in force, which provided that no religious corporation can ever be established in this State, has no force and effect here. (1st) Because the defendant church has not acquired title and is not seeking to acquire title to the 560 acres of land in controversy. The bequest to it by the will of Hugh F. Ross was not of the land. The bequest was that the land be sold and the proceeds used to build a house of worship for the benefit of the Old School Presbyterian Church at Stockton. Such property, to-wit, houses of worship, churches have always had the right under any and all constitutions of the State to hold. (2nd) The parent church was never incorporated. Its trustees were, in 1899. The incorporation of the trustees of the General Assembly is not the incorporation of the church itself. Trustees of the General Assembly v. Guthrie, 6 L.R.A. 321. (3rd) Because the appellant Walter Ross having no right, title, interest or estate whatever in the land in controversy, can raise no such question by this appeal. Having no interest himself, he cannot question the validity of the will as to the church. Barkley v. Donnelley, 112 Mo. 570; Wheeler v. Land Co., 193 Mo. 291; In re McGraw, 2 L.R.A. 387, 136 U.S. 152; McKeorm v. Officer, 127 N.Y. 687; Patton v. Patton, 39 Ohio St. 500. (4th) The church did not lose its existence or organization by incorporating. It still has an association capable of appropriating and using and enjoying the house of worship when it is built from the proceeds of the sale of the land in controversy. Catholic Church v. Tobbien, 82 Mo. 424; Lilley v. Tobbien, 103 Mo. 488. (g) The church did not take under the will then and there; that is, upon the death of Hugh Ross, as asserted by appellant. The trust created was an active trust, the trustees to be appointed by the court under its equity power being charged with the sale of the property, the building of the church or the turning over of the proceeds of the sale to the proper officers of the church for that purpose. The Statute of Uses does not apply to an active trust. Webb v. Hayden, 166 Mo. 39; Garland v. Smith, 164 Mo. 1; Simpson v. Erisner, 155 Mo. 157; Newton v. Rabenack, 90 App. 651; Carter v. Long, 181 Mo. 701. (h) The direction in the will that the land be sold and the proceeds used to build a house of worship in Stockton for the benefit of the Old School Presbyterian Church was a request of the proceeds of the sale of the land and not of the land to the church. Sanitarium v. McCune, 112 Mo.App. 332; Shepherd v. Clark, 38 Ill.App. 66; Methodist Church v. Smith, 56 Md. 362.
Parks & Son for respondents, Omer Wasson and Wallace Wasson.
(1) Under our law, a legitimate child is one who is born in lawful wedlock, or of a widow within ten months after the death of her husband, or who is born before the marriage of its parents, who afterwards marry and the child then receives the recognition of its parents. Gates v. Seibert, 157 Mo. 272; Martin v. Martin, 250 Mo. 545. A bastard at common law is one, not only begotten but born out of lawful wedlock, or not within a competent time after its determination, etc. 3 Am. & Eng. Ency. Law, 872. The general reputation and common report of the neighborhood is generally held to be admissible in questions of legitimacy. 5 Cyc. 630 (3). Evidence of the resemblance of the child to the putative father, has been held competent. 5 Cyc. 630 (4). (2) Mere possession does not create title by limitation, however long continued; to have such effect, the possession must be open notorious, continuous, and adverse and hostile to the true owner, under color of adverse title, or under a claim of ownership, hostile to the true...
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